Privacy Rights, Fair Trials, Celebrities and the Press

By ADAM LIPTAK

Published: July 23, 2004

Recent rulings in the Kobe Bryant and Michael Jackson cases have started to reshape settled First Amendment law.

The judges in the cases are struggling to reconcile the rights and appetites of the press, the privacy of people who say they were sexually assaulted and the fair-trial rights of celebrity defendants. In each case, the courts have ruled that the defendant's fame requires a different sort of legal analysis, imposing greater restrictions on the information released to the public.

In the Bryant case, the Colorado Supreme Court on Monday imposed a prior restraint, forbidding news organizations to publish information from a transcript mistakenly e-mailed to them by a court clerk. That ruling was a bold one, legal experts say, and at odds with United States Supreme Court decisions.

In the Jackson case, Judge Rodney S. Melville of Santa Barbara County Superior Court has issued a series of orders barring the release of essentially all information concerning evidence and potential witnesses' identities. That, too, is an unusually sweeping approach, the experts say, though the law concerning access to court proceedings and documents is not as definitive as that concerning restraints on publication.

The Supreme Court has never endorsed a prior restraint on the publication of news by the press, even in cases involving national security or a criminal defendant's fair-trial rights, and even when the information in question was provided to reporters unlawfully.

The sole hypothetical exception, Justice William J. Brennan Jr. wrote in a concurrence to the Supreme Court's 1971 decision allowing publication of the Pentagon Papers, would require proof that the disclosure ''must inevitably, directly and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea.''

To that narrow category, the Colorado Supreme Court added a second: information concerning the sexual history of Mr. Bryant's accuser in a rape case, much of which the three dissenting judges said was already in the public domain.

On Wednesday, seven news organizations that received the information, including The Associated Press, The Los Angeles Times and The Denver Post, filed an emergency application in the United States Supreme Court to overturn the decision. The New York Times has joined a brief supporting the application.

In the Jackson case, Judge Melville outlined his own approach in an angry statement from the bench to a lawyer for several news organizations, including The Times, at a hearing last month.

''You need to not mislead the public by constantly indicating that I'm doing something that is not according to the law,'' the judge told the lawyer, Theodore J. Boutrous Jr., according to a transcript. ''The difficulty of seeing that any individual in the country gets a fair trial is exasperated when the individual themselves is known around the world, and it makes it very difficult for that individual to get a fair trial.''

In a brief filed on Monday, lawyers for Mr. Jackson wrote that public interest in the case was ''voyeuristic and entertainment-related,'' requiring extraordinary secrecy.

''One can imagine other cases which might have a direct impact on the public welfare, national politics or international relations,'' the brief said. ''This is not one.''

In a response filed Wednesday, Mr. Boutrous wrote, ''What he is really seeking is a blanket celebrity exception to the First Amendment that would turn the notion of public access upside down.''

Fame, Mr. Bryant's, also figured in the Colorado Supreme Court's decision, which essentially affirmed a ruling by the trial judge, W. Terry Ruckriegle. Those justices, distinguishing their ruling from a 1989 decision of the United States Supreme Court striking down a Florida law that barred the publication of rape victims' names, noted that the Florida case did not involve a celebrity.

''The defendant Bryant is an internationally recognized professional basketball player,'' Justice Gregory J. Hobbs wrote for the 4-to-3 majority. ''The press has been covering every minute detail of this case, and most of this coverage has been published or broadcast nationwide.''

In February, the federal appeals court in New York handed the press a victory in a case involving a celebrity, overturning a trial judge's order closing jury selection in the Martha Stewart case. The judge, Miriam G. Cedarbaum, said she had decided to close the jury selection because of ''an extraordinary interest quite beyond the public's right to know.''

The appeals court, in a decision by Judge Robert A. Katzmann, said this justification was misguided. ''The mere fact that the suit has been the subject of intense media coverage'' is not ''sufficient to justify closure,'' Judge Katzmann wrote. ''To hold otherwise would render the First Amendment right of access meaningless; the very demand for openness would paradoxically defeat its availability.''

That decision was issued before two newspapers published the name of a juror during the trial of two corporate executives in March. Soon afterward, in the trial of a different executive, another New York judge simply ordered the press not to publish jurors' names -- a prior restraint. That case is on appeal.

Judicial hostility to the press has reached a tipping point, a prominent media lawyer said, insisting on anonymity for fear of compromising his clients' interests. In addition to the Bryant and Jackson cases, the lawyer cited subpoenas issued to journalists at Time and NBC that seek the names of sources on the investigation into who disclosed the identity of an undercover C.I.A. officer.

The news organizations' motions to quash the subpoenas are sealed under grand jury secrecy rules, but they have presumably argued that they should be able to keep the sources' identities secret under what some courts call a reporters' privilege. It is not known whether the Federal District Court in Washington, which is hearing the challenges, has ruled.

''I wouldn't be surprised,'' the media lawyer said, ''if both prior restraint law and the reporters' privilege as we know them are, by the end of the year, history.''